Serious Medical Errors Are Common

Excerpted from a letter to the editor in the Cleveland Plain Dealer by two excellent Cleveland attorneys.

Dr. Michael Kirsch’s column (“Litigation fever causing headaches for able physicians,” published in The [Cleveland] Plain Dealer Jan. 12, 2014) is the epitome of a double standard. While he says that we, non-doctors, should take more responsibility for our own mistakes, nowhere does he suggest the medical community should take responsibility for medical mistakes that cause serious injury and death to patients. Nowhere does he acknowledge that preventable medical errors are the leading cause of accidental death nationwide, and third leading cause of death from all causes — killing as many as 400,000 patients annually, according a study in the September 2013 Journal of Patient Safety. Or that one-third of hospital patients fall victim to medical negligence each year, as reported in the April 2011 issue of Health Affairs. . . . Are these examples of the medical profession taking responsibility for its errors?

Dr. Kirch’s most misleading claim is that Ohio courts are full of frivolous, baseless medical malpractice cases. He left out that in order to bring medical malpractice lawsuit in Ohio, the patient must first get permission from a physician. Under Ohio law, one cannot file a lawsuit against a doctor without first securing an affidavit, executed under oath, by a qualified physician, stating that each doctor named in the lawsuit was negligent and caused the patient’s injury. Without this affidavit, the lawsuit cannot be filed.

The precipitous drop in lawsuits also disproves the idea that medical malpractice litigation has run amok in Ohio. The Ohio Supreme Court’s 2012 Statistical Report shows a staggering decrease in medical negligence claims compared to ten years ago. The number of professional malpractice cases filed (against attorneys, doctors and other professionals) dropped from 2,683 in 2003 to 1,242 in 2012 (down 54 percent). There is [no data] . . . to suggest medical malpractice litigation has run amok.

Medical malpractice lawsuits are rare in part due to Ohio laws favoring physicians. In addition to the affidavit requirement mentioned above, Ohio’s one-year statute of limitations keeps many cases out of court. No state in the union has a shorter period of time for patients to bring medical negligence claims. In many instances of medical malpractice, one year is not enough time for injured patients or their families to [grieve, collect their thoughts], retain counsel, evaluate the case, and obtain permission to sue from a physician. After the one year expires, the courthouse doors are shut forever to that injured patient. . . .

Dr. Kirsch may not know that the vast majority of medical malpractice cases are turned down by law firms, usually because of the cost of the litigation or the laws that favor doctors. A 2013 Emory Law School study found that attorneys turn away 95 percent of patients who suffered harm during medical treatment. The costs to bring a medical malpractice case typically exceed $100,000. Even if the case for liability is strong, if the potential damages do not justify the expensive process of litigating a medical malpractice case, it doesn’t make sense for the client or the law firm to pursue the case. This reality cannot be reconciled with Dr. Kirsch’s views. . . .

Dr. Kirsch’s column is extremely misleading about the current legal climate and must be corrected. Readers deserve an accurate account of the status of the law and how it presently works to keep most patients injured by medical mistakes out of court.